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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 10 · صفحة 574

الترجمة · EN

If her waiting period expires and she marries, then he comes and claims that he had revoked her before her waiting period expired, and he produces evidence for that, it is established that she is his wife and that the marriage to the second [husband] is invalid, because he married the wife of another. She is returned to the first [husband], whether the second [husband] had consummated the marriage with her or not. This is the correct view and is the position of most jurists, including al-Thawri, al-Shafi'i, Abu 'Ubayd, and the jurists of the school of opinion (Ashab al-Ra'y). This is also narrated from 'Ali, may Allah be pleased with him, and is one of the two narrations from Abu 'Abd Allah, may Allah have mercy on him. The second narration is that if the second [husband] has consummated the marriage with her, then she is his wife, and the marriage to the first [husband] is annulled. This is narrated from 'Umar ibn al-Khattab, may Allah be pleased with him, and is the position of Malik. A similar view is narrated from Sa'id ibn al-Musayyab, 'Abd al-Rahman ibn al-Qasim, and Nafi', because each of them entered into a contract with her while she was someone with whom a contract was permissible in the apparent sense, and the second [husband] has the merit of consummation, so he is given precedence because of it. Our argument is that the revocation was valid, and she married while she was [still] the wife of the first, so her [second] marriage was not valid, just as if he had not divorced her. Once this is established, if the second [husband] has not consummated the marriage with her, they are separated, she is returned to the first, and there is no liability upon the second. If he has consummated the marriage with her, she is entitled to the dowry of a similar woman (mahr al-mithl) from him, because this is a case of intercourse by semblance (shubhah). She shall observe a waiting period and is not lawful for the first [husband] until her waiting period from him expires. If he produces the evidence before the second [husband] has consummated the marriage with her, she is returned to the first without any disagreement in the school of law, and this is one of the two narrations from Malik. As for if she marries while aware of the revocation, or if both of them are aware, the marriage is invalid without disagreement, and intercourse is prohibited for whoever among them was aware of it; his ruling is that of an adulterer regarding the legal punishment (hadd) and otherwise, because he had intercourse with another man's wife while aware of the situation. As for if the claimant of the revocation has no evidence and one of them denies it, his statement is not accepted; but if they both deny it, the marriage is valid regarding their status, and if they both acknowledge the revocation to him, it is established.

الحواشي

(2) In M: "thumma tazawwajat" (then she married). (3) In the original: "aw aqama" (or he produced). (4) In B: "al-ula" (the first). (5) In A: "taqdi" (concludes). (6) Omitted from the original. (7) In the original: "ankara" (he denied). (8) In the original: "haqqa-ha" (her right).

السابقمجلد 10 · صفحة 574التالي
السابق10·574التالي